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Getzendaner v. Erbstein

OPINION FILED OCTOBER 9, 1950

ELEANOR GETZENDANER, APPELLANT,

v.

MRS. CHARLES ERBSTEIN, APPELLEE.



Appeal by plaintiff from the Superior Court of Cook county; the Hon. PETER J. SCHWABA, Judge, presiding. Heard in the first division of this court for the first district at the April term, 1950. Reversed and remanded. Opinion filed October 9, 1950. Rehearing denied November 17, 1950. Released for publication November 17, 1950.

MR. JUSTICE TUOHY DELIVERED THE OPINION OF THE COURT. Rehearing denied November 17, 1950

Plaintiff filed her complaint alleging that she entered into a lease with defendant for the use of defendant's property for the period November 1, 1945 to December 31, 1948, said lease providing, "It is further agreed that the parties of the second part are to erect a building to be attached to the north side of the present building (stables) but in doing so they are not to break any of the present walls, and at the expiration of this lease they shall have the privilege of removing said building and must leave the present building in good condition"; that plaintiff thereafter erected a large building at a cost of $7,300, having a reasonable present value of $7,200, and also a ring fence reasonably worth $500; that thereafter on May 22, 1947, defendant served on plaintiff a five-day notice for possession and on or about July 5, 1947, a writ of restitution for possession of the demised premises was served on plaintiff, said writ having been issued pursuant to a judgment for possession, and on the same day defendant was forcibly ejected from the premises; that at the time and place she attempted to remove the building built by her but was forcibly prevented from doing so by the defendant. She asked for damages in the sum of $10,000. The complaint was stricken on a motion of defendant on the grounds that no cause of action was set up in the complaint, and that the complaint shows on its face that on July 5, 1947, plaintiff was a trespasser and as such had no right on the premises for the purpose of removing fixtures or otherwise.

[1-3] As authority for the proposition that fixtures must be removed, if at all, during the term of the lease defendant cites several Illinois cases. These cases have to do with situations where the lease has ended by its terms and not by reason of prior default and judgment for possession. Where a lease ends by its terms, the lessee is aware that all his rights in the premises would be extinguished on a day certain and is not prejudiced by the requirement that he remove any fixtures to which he is entitled during the defined period. However, where the tenancy is ended prior to the expiration of the lease as a result of a forcible entry and detainer action instituted during the period of the lease, the same certainty of termination does not appear until after judgment. In such case it has been held that the tenant is entitled to a reasonable period after the termination of the lease for the removal of fixtures. In Merrell v. Garver, 54 Ind. App. 514, the court said (pp. 525, 526):

"The rule, in this State and in many others, is that a tenant who owns buildings placed upon the land of another, with the right of removal reserved, may remove them within the term of his lease or within a reasonable time after the termination of the lease, or any extension thereof, unless by the express terms of the lease he forfeits them if not removed by a specified date. . . . Jones, Landlord and Tenant, § 719, states the rule as follows: `While the common law right to remove trade fixtures must be exercised during the term, a similar privilege conferred by agreement is not so narrowly restricted as to the time when the removal must be effected. . . . If the removal should not be effected within a reasonable time after the term expired, the right would cease and the property become a part of the realty.'"

In Davidson v. Crump Mfg. Co., 99 Mich. 501, the court said at page 503:

"The express terms of the lease allow the removal `at the end of this term.' . . . It is evident that this clause was not inserted to limit defendant's rights of removal, but to protect them. It says nothing about its losing them if the property should not be seasonably removed, but, on the contrary, it expressly says that defendant shall have a right to remove at the end of the term, when, under the law as generally understood, unless otherwise agreed, it would be its duty to remove before yielding up possession. Clearly, if any force is to be given to this provision, it is that, after the expiration of the term, defendant should be permitted ingress and egress for a reasonable time to remove its property."

To the same effect are the holdings in Smith v. Park, 31 Minn. 70, 72, and Caperton v. Stege, 91 Ky. 351, 354. The doctrine is also cited in the case of Fellows v. Johnson, 183 Ill. App. 42, although in that case it was held that there was nothing in the lease which expressly or by implication gave appellant any right to enter and remove the structures after the termination of his lease. In these cases the further distinction is emphasized that while under the common law the right of a tenant to remove fixtures must be exercised before he quits possession and if not so done is deemed lost or abandoned, when a privilege of removing fixtures at the termination of the lease is provided for in the lease itself, the agreement is not so narrowly restricted as to the time when the removal must be effected. It is further noted that in the instant case no time for the removal of the fixtures was provided other than the general language that the lessees should have the privilege of removing the fixtures "at the expiration of this lease." It must be noted in this connection that the lease did not limit by express language the privilege of removing the fixtures at the termination of the lease, in the event such termination occurs before the expiration date in the lease. In Smith v. Park such a clause was interpreted as follows:

"The terms of the lease giving the right of removal at the expiration of the term, the tenant was not required to remove the house during his term, but might occupy it as a dwelling-house during the full term, and then within a reasonable time remove it."

What constitutes a reasonable time after the termination of tenancy for removal of fixtures is a question of fact for the jury.

We do not observe the complaint herein was defective in any substantial particular. Moreover, the motion for its dismissal did not point out specifically the defects complained of as provided in par. (1), sec. 45 [par. 169] of the Civil Practice Act [Jones Ill. Stats. Ann. 104.045]. In view of the injunction of par. (3), sec. 33 [par. 157] of the Civil Practice Act [Jones Ill. Stats. Ann. 104.033], that pleadings shall be liberally construed with a view to doing substantial justice between the parties, we are of the opinion that the complaint stated a cause of action and its dismissal was error. Therefore, the judgment order is reversed and the cause is remanded for proceedings in conformity with the views herein expressed.

Reversed and remanded.

NIEMEYER, P.J., dissents.

FEINBERG, J., concurs.

NIEMEYER, P.J., ...


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